9911796707
TMI Blog2021 (2) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... rectification filed under Section 74 came to be rejected by the assessing officer. It is not in dispute that the said Order passed by the Assessing Officer refusing to allow application for rectification filed under Section 74 was appealable under Section 85 of the Finance Act 1994. The said appeal was admittedly pending as on 30/06/2019 - if the said application for rectification would have been allowed partly or fully by the assessing Officer, under Section 74 (7), the assessing officer was required to give effect and implement the said Order, if any, on the application for rectification. A perusal of the said Section 74 (7), indicates that where any such amendment has the effect of enhancing the (liability of the assessee) or reducing the refund already made, the (Central Excise Officer) shall make an order specifying the sum payable by the assessee and the provisions of said chapter shall apply accordingly. It is clear beyond reasonable doubt that any Order allowing the said application for rectification partly or fully would modify the Order in original passed by the Assessing Officer in pursuance of show cause notice issued by the assessing Officer. Such Order of rectifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 06/03/2020 issued by the Designated Committee in form SVLDRS-3 and seeks an order and direction to allow/accept the Application/Declaration No. LD1501200005280 filed by the Petitioner. 3. The Commissioner of Central Excise and Service Tax issued a Show Cause Notice dated 03-07/08/2015 to the Petitioner for refunding the Service tax amounting to ₹ 49,96,083/- and show cause as to why the action proposed against the Petitioner shall not be taken. The Commissioner of Central Excise passed an Order in Original on 29/03/2017 against the Petitioner. On 13/07/2018, the Petitioner filed an application for rectification of the alleged mistake apparent from the records according to the Petitioner under Section 74 of Chapter V of the Finance Act, 1994. On 20/02/2019, the authority rejected the said application for rectification. On 08/04/2019, the Petitioner preferred an appeal before the Appellate Authority under Section 85 of the Finance Act,1994. 4. On 01/09/2019, the Central Government issued a Notification notifying the scheme named Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (hereinafter referred as the said Scheme). 5. On 15/01/2020, the Petitioner filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hear an appeal under Section 85 of the Finance Act against the Order of the assessing Officer refusing to rectify Order on the application filed under Section 74 of the Finance Act, 1994. He submits that none of the provisions under the said Scheme contemplates that the Appeal has to be only an appeal against the order in original and not against the order refusing to rectify the mistakes in the application filed under Section 74 of the Finance Act for the purpose of eligibility under the said scheme. 10. Mr. J. B. Mishra, the learned counsel for the Respondents submits that the Order defined under Section 121 (o) clearly provides that Order means Order of determination under any of the indirect tax enactment, passed in relation to a show cause notice issued under such indirect tax enactment. He submits that the Order passed by the assessing Officer on application for rectification filed under Section 74 of the Finance Act cannot be construed as an Order within the meaning of the Section 121 (o) of the said scheme. 11. It is submitted that the Petitioner has admittedly not challenged the Order-in-Original dated 29/03/2017 which was passed in pursuance to the Show Cause Cum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Section 74 (7), indicates that where any such amendment has the effect of enhancing the (liability of the assessee) or reducing the refund already made, the (Central Excise Officer) shall make an order specifying the sum payable by the assessee and the provisions of said chapter shall apply accordingly. 16. A perusal of Section 74(5), indicates that where an amendment is made under the said provision, an order shall be passed in writing by the Central Excise Officer concerned. A perusal of Section 74(4), indicates that an amendment which has the effect of enhancing [the liability of the assessee or reducing a refund], shall not be made under the said provision unless the Central Excise Officer himself has given notice to the assessee of his intention so to do and has allowed the assessee a reasonable opportunity of being heard. 17. It is thus clear beyond reasonable doubt that any Order allowing the said application for rectification partly or fully would modify the Order in original passed by the Assessing Officer in pursuance of show cause notice issued by the assessing Officer. Such Order of rectification has to be read with the Order in Original. The said Order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clearly provided that all persons shall be eligible to make declaration under the said Scheme except (a) who have filed an appeal before the Appellate Forum and such appeal has been heard finally on or before 30/06/2019. In this case the appeal filed by the Petitioner under Section 85 of the Finance Act, 1994 was pending on 30/06/2019. The Petitioner was thus eligible to file the said scheme under the litigation category . 23. In so far as, the term amount in arrears under Section 121(c) of the said scheme is concerned, it means the amount of duty which is recoverable as arrears of duty under the indirect tax enactment, on account of (i) no appeal having been filed by the declarant against an Order or an order in appeal before the expiry of the period of time for filing appeal or (ii) an Order in appeal relating to the declarant attaining finality. 24. In this case the Petitioner had already filed the appeal against the Order passed by the Assessing Officer under Section 74 of the Finance Act, 1994 rejecting the application for rectification. There is no merit in the submission of the Mr. Mishra, the learned counsel for the Respondents that the declaration form file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various level whereas the amnesty component gives an opportunity to those who have failed to correctly discharge their tax liability to pay the tax dues. It was further stated in the said circular that the said scheme had the potential to liquidate the huge outstanding litigation and free the taxpayers from the burden of litigation and investigation under the legacy taxes. The administrative machinery of the Government will also be able to fully focus on helping the taxpayers in the smooth implementation of GST. The importance of making this scheme a grand success cannot be overstated. The authorities are instructed to familiarize themselves with the scheme and actively ensure its smooth implementation. 28. This Court also adverted to the judgment of this Court in case of Capgemini Technology Services Limited vs. Union of India in Writ Petition (Stamp) No. 5629 of 2020, decided on 25th September, 2020 in which it was observed that the scheme had the twin objectives of liquidation of past disputes pertaining to the subsumed taxes on the one hand and disclosure of unpaid taxes on the other hand. The concerned authorities should keep in mind the broad picture while dealing with ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
